ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF NEVADA

[June 21, 2004]

Justice Stevens, dissenting.

The Nevada law at issue in this case
imposes a narrow duty to speak upon a specific class of
individuals. The class includes only those persons detained by
a police officer under circumstances which reasonably
indicate that the person has committed, is committing or is
about to commit a crime1persons who are, in other words, targets
of a criminal investigation. The statute therefore is directed
not at the public at large, but rather at a
highly selective group inherently suspect of criminal
activities. Albertson v. Subversive Activities
Control Bd.,382
U.S. 70, 79 (1965).

Under the Nevada law, a member of the
targeted class may not be compelled to answer any
inquiry except a command that he identify
himself.2
Refusal to identify oneself upon request is punishable as a
crime.3
Presumably the statute does not require the detainee to answer
any other question because the Nevada Legislature realized that
the Fifth
Amendment prohibits compelling the target of a criminal
investigation to make any other statement. In my judgment, the
broad constitutional right to remain silent, which derives from
the Fifth
Amendments guarantee that [n]o person
shall be compelled in any criminal case to be a witness against
himself, U.S. Const., Amdt. 5,4 is not as circumscribed as the
Court suggests, and does not admit even of the narrow exception
defined by the Nevada statute.

[T]here can be no doubt that
the Fifth
Amendment privilege is available outside of criminal court
proceedings and serves to protect persons in all settings in
which their freedom of action is curtailed in any significant
way from being compelled to incriminate themselves.
Miranda v. Arizona,384 U.S. 436, 467
(1966). It is a settled principle that the
police have the right to request citizens to answer voluntarily
questions concerning unsolved crimes, but they have
no right to compel them to answer. Davis v.
Mississipi,394
U.S. 721, 727, n. 6 (1969). The protections of the Fifth Amendment are
directed squarely toward those who are the focus of the
governments investigative and prosecutorial powers. In a
criminal trial, the indicted defendant has an unqualified right
to refuse to testify and may not be punished for invoking that
right. See Carter v. Kentucky,450 U.S. 288,
299300 (1981). The unindicted target of a grand jury
investigation enjoys the same constitutional protection even if
he has been served with a subpoena. See Chavez v.
Martinez,538
U.S. 760, 767768 (2003). So does an arrested suspect
during custodial interrogation in a police station.
Miranda, 384 U.S., at 467.

There is no reason why the subject of
police interrogation based on mere suspicion, rather than
probable cause, should have any lesser protection. Indeed, we
have said that the Fifth
Amendments protections apply with equal force in the
context of Terry stops, see Terry v. Ohio,392 U.S. 1 (1968),
where an officers inquiry must be reasonably
related in scope to the justification for [the stops]
initiation.
Berkemer v. McCarty, 468 U.S. 420, 439
(1984) (some internal quotation marks omitted).
Typically, this means that the officer may ask the
detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or
dispelling the officers suspicions. But the detainee is
not obliged to respond. Ibid. See also
Terry, 392 U.S., at 34 (White, J., concurring) (Of
course, the person stopped is not obliged to answer, answers
may not be compelled, and refusal to answer furnishes no basis
for arrest, although it may alert the officer to the need for
continued observation). Given our statements to the
effect that citizens are not required to respond to police
officers questions during a Terry stop, it is no
surprise that petitioner assumed, as have we, that he had a
right not to disclose his identity.

The Court correctly observes that a
communication does not enjoy the Fifth Amendment
privilege unless it is testimonial. Although the Court
declines to resolve this question, ante, at 1011,
I think it clear that this case concerns a testimonial
communication. Recognizing that whether a communication is
testimonial is sometimes a difficult question,
Doe v. United States,487 U.S. 201,
214215 (1988), we have stated generally that [i]t
is the extortion of information from the accused,
the attempt to force him to disclose the contents of his
own mind, that implicates the Self-Incrimination
Clause, id., at 211 (citations omitted). While
[t]he vast majority of verbal statements thus will be
testimonial and, to that extent at least, will fall within the
privilege, id., at 213214, certain acts and
physical evidence fall outside the privilege.5 Inall instances, we have
afforded Fifth
Amendment protec-tion if the disclosure in question was
being admitted because of its content rather than some other
aspect of the communication.6

Considered in light of these
precedents, the compelled statement at issue in this case is
clearly testimonial. It is significant that the communication
must be made in response to a question posed by a police
officer. As we recently explained, albeit in the different
context of the Sixth
Amendments Confrontation Clause, [w]hatever
else the term [testimonial] covers, it applies at a
minimum to police interrogations. Crawford
v. Washington, 541 U.S. ___, ___ (2004) (slip op., at
33). Surely police questioning during a Terry stop
qualifies as an interrogation, and it follows that responses to
such questions are testimonial in nature.

Rather than determining whether the
communication at issue is testimonial, the Court instead
concludes that the State can compel the disclosure of
ones identity because it is not
incriminating. Ante, at 11. But our cases
have afforded Fifth
Amendment protection to statements that are
incriminating in a much broader sense than the
Court suggests. It has long been settled that [the Fifth
Amendments] protection encompasses compelled
statements that lead to the discovery of incriminating evidence
even though the statements themselves are not incriminating and
are not introduced into evidence. United States
v. Hubbell, 530
U.S. 27, 37 (2000). By incriminating we have
meant disclosures that could be used in a criminal
prosecution or could lead to other evidence that might be so
used, Kastigar v. United States,406 U.S. 441, 445
(1972)communications, in other words, that would
furnish a link in the chain of evidence needed to prosecute the
claimant for a federal crime, Hoffman v. United
States,341 U.S.
479, 486 (1951). Thus, [c]ompelled testimony that
communicates information that may lead to incriminating
evidence is privileged even if the information itself is
not inculpatory. Hubbell, 530 U.S., at 38 (citing
Doe, 487 U.S., at 208, n. 6).

Given a proper understanding of the
category of incriminating communications that fall
within the Fifth
Amendment privilege, it is clear that the disclosure of
petitioners identity is protected. The Court reasons
that we should not assume that the disclosure of
petitioners name would be used to incriminate him or that
it would furnish a link in a chain of evidence needed to
prosecute him. Ante, at 1213. But why else would
an officer ask for it? And why else would the Nevada
Legislature require its disclosure only when circumstances
reasonably indicate that the person has committed, is
committing or is about to commit a crime?7 If the Court is
correct, then petitioners refusal to cooperate did not
impede the police investigation. Indeed, if we accept the
predicate for the Courts holding, the statute requires
nothing more than a useless invasion of privacy. I think that,
on the contrary, the Nevada Legislature intended to provide its
police officers with a useful law enforcement tool, and that
the very existence of the statute demonstrates the value of the
information it demands.

A persons identity obviously
bears informational and incriminating worth, even if the
[name] itself is not inculpatory. Hubbell, 530
U.S., at 38. A name can provide the key to a broad array of
information about the person, particularly in the hands of a
police officer with access to a range of law enforcement
databases. And that information, in turn, can be tremendously
useful in a criminal prosecution. It is therefore quite wrong
to suggest that a persons identity provides a link in the
chain to incriminating evidence only in unusual
circumstances. Ante, at 12.

The officer in this case told
petitioner, in the Courts words, that he was
conducting an investigation and needed to see some
identification. Ante, at 2. As the target of
that investigation, petitioner, in my view, acted well within
his rights when he opted to stand mute. Accordingly, I
respectfully dissent.

Notes

3. In this case, petitioner was charged
with violating §199.280, which makes it a crime to
willfully resis[t], dela[y] or obstruc[t] a public
officer in discharging or attempting to discharge any legal
duty of his office. A violation of that provision is a
misdemeanor unless a dangerous weapon is involved.

5. A suspect may be made, for example, to
provide a blood sample, Schmerber v. California,384 U.S. 757, 765
(1966), a voice exemplar, United States v.
Dionisio,410
U.S. 1, 7 (1973), or a handwriting sample, Gilbert
v. California,388 U.S. 263,
266267 (1967).

6. See Pennsylvania v.
Muniz,496 U.S.
582, 598599 (1990) (respondents answer to the
birthday question was protected because the
content of his truthful answer supported an inference
that his mental faculties were impaired); Doe v.
United States,487 U.S. 201, 211,
n. 10 (1988)(The content itself must have
testimonial significance); Fisher v. United
States,425 U.S.
391, 410411 (1976) ([H]owever incriminating the
contents of the accountants workpapers might be, the act
of producing themthe only thing which the taxpayer is
compelled to dowould not itself involve testimonial
self-incrimination); Gilbert, 388 U.S., at
266267 (A mere handwriting exemplar, in contrast to
the content of what is written, like the voice or body itself,
is an identifying characteristic outside its protection);
United States v. Wade,388 U.S. 218, 223
(1967) ([I]t deserves emphasis that this case presents no
question of the admissibility in evidence of anything Wade said
or did at the lineup which implicates his privilege).

7. Nev. Rev. Stat. §171.123(1)
(2003). The Court suggests that furnishing identification also
allows the investigating officer to assess the threat to
himself and others. See ante, at 8. But to the extent
that officer or public safety is immediately at issue, that
concern is sufficiently alleviated by the officers
ability to perform a limited patdown search for weapons. See
Terry v. Ohio,392 U.S. 1, 2526
(1968).